Opinion
NO. 2011-CA-001783-MR
02-15-2013
PHILLIP TRACY CLAXON APPELLANT v. BOARD OF EDUCATION OF GREENUP COUNTY AND STEVE HALL, IN HIS OFFICIAL CAPACITY, AS SUPERINTENDENT OF THE GREENUP COUNTY SCHOOLS APPELLEES
BRIEFS AND ORAL ARGUMENTS FOR APPELLANT: Arthur L. Brooks Lexington, Kentucky BRIEF AND ORAL ARGUMENTS FOR APPELLEES: James W. Lyon, Jr. Greenup, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE REBECCA K. PHILLIPS, JUDGE
ACTION NO. 10-CI-00510
OPINION
AFFIRMING
BEFORE: DIXON, MAZE, AND NICKELL, JUDGES. MAZE, JUDGE: Appellant, Phillip Claxon, appeals the Greenup Circuit Court's Opinion and Order affirming his demotion by the Board of Education of Greenup County ("Board"). Upon thorough review of the record and facts of this case, we find there was substantial evidence to support the decisions of the Board and of the Circuit Court. Hence, we affirm.
Background
The following facts are not in dispute in this case. Phillip Claxon (hereinafter "Claxon") was employed by the Board for twenty-two years, including more than ten years as an administrator. In May of 2009, while he was the principal of Wurtland Middle School in Greenup County, Claxon and the superintendant of Greenup County Schools, Randy Hughes, entered into a Principal Corrective Action Plan ("CAP") due to several issues regarding Claxon's performance in certain areas. Among these issues were Claxon's attendance at work (which it identified as a "primary concern"), the maintenance and timely processing of Special Education referrals and Individual Education Plans ("IEPs"), as well as the occurrence of required site-based council meetings. The CAP required Claxon to contact the superintendant directly in the event that he would be absent from work and for him to be absent no more than one day per month. The CAP ended by stating, "administrative changes will occur for the 2010-2011 school year in the event that the aforementioned corrective actions are not successfully implemented." Both Claxon and the superintendant signed the CAP.
In early December 2009, Superintendant Hughes informed Claxon that he would be transferred to the Board's central office and promoted to the position of Director of District Programs, effective in January. More than four months later, in a letter dated April 21, 2010, Superintendant Hughes informed Claxon of a reduction in responsibility and in his pay for the next school year. On May 13, 2010, Claxon, through counsel, responded to the notice and informed the Board of his intent to contest his demotion. Claxon also requested a "specific and complete statement of grounds upon which the proposed demotion [was] based, including dates, times, names, places and circumstances, as may be appropriate." In a letter dated the same day, Superintendant Hughes provided Claxon with seven reasons for his demotion, including, "[e]xtremely poor work attendance; [f]ailure to ensure Special Education documentation and timelines are maintained and met; [f]ailure to ensure [Special Education Individual Education Plans] are in compliance; [f]ailure to hold regularly schedule [sic] Site-based Council meetings . . ." There is no indication from the record that Claxon received any further information from the superintendant prior to his hearing before the Board.
Though it was dated nearly three weeks earlier, Claxon did not receive this letter until May 11, 2010. Therefore, Claxon's subsequent letter notifying the Board of his intent to contest was well within the ten day limit for such notice under KRS 161.756(2)(a).
Claxon's demotion hearing was held on June 14, 2010 before the five-member Board. Relevant testimony included that of Steve Hall, acting superintendant, who testified that between September 1, 2009, and June 17, 2010, Claxon missed thirty-eight and one-half days of work. This total included the period between April 26, 2010 and June 9, 2010 for which Claxon was medically excused. Mr. Hall also stated that Claxon had exceeded the CAP's limit of one absence per month. The Board also heard from Kim Taylor regarding Claxon's performance regarding Special Education. Ms. Taylor testified that following the execution of the CAP in 2009, Claxon's school was non-compliant in at least two instances when federal rules require a 100 percent compliance rate. Ms. Taylor also stated that such non-compliance threatened the entire school district's federal funding.
Claxon also testified at the hearing. He stated that there had been "extenuating circumstances" which led to his excessive absenteeism, including several deaths in his family and health problems which limited his mobility. He testified that he never lied about being ill when he reported that he was too sick to work. He acknowledged that the October 2009 site-based council meeting was not held despite his numerous attempts to reschedule. He acknowledged the school's non-compliance regarding Special Education documentation. Claxon did not dispute missing thirty-eight and one-half days of work during the 2009-2010 school year, including sixteen as principal at Wurtland. He stated that he or his wife called or attempted to call when he was going to be absent. Claxon testified that he was often unable to report his absences directly to the superintendant, as required under the CAP, because the superintendant was not yet in his office when Claxon called. This testimony was supported somewhat by that of Michael Raby, Director of Pupil Personnel at Wurtland, who testified that Claxon or his wife called at least some absences in to individuals other than the superintendant during the fall of 2009. Mr. Raby further testified that Claxon was absent "a lot."
On June 17, 2010, the Board reconvened and rendered its unanimous decision upholding Claxon's demotion. Claxon appealed to the Greenup Circuit Court which also upheld his demotion, its opinion focusing heavily on evidence regarding Claxon's attendance. Claxon now appeals the decision of the Greenup Circuit Court.
Standard of Review
On appeal, Claxon challenges the Circuit Court's order affirming the Board's decision on three grounds: 1) That the Board's decision was not supported by substantial evidence because the grounds given for his demotion were based on events which took place while he was in a previous position; 2) that the grounds for his demotion were not provided to him with the specificity required under KRS 165.765; and 3) that the trial court misinterpreted testimony by Claxon and others given at the hearing.
"[T]he grounds for the demotion of an administrator are left to the sound discretion of the Superintendant and board of education as long as they do not act in an arbitrary or unreasonable manner." Board of Educ. of McCreary County v. Williams, 806 S.W.2d 649, 650 (Ky. App. 1991) (citing to Miller v. Board of Educ. of Hardin County, 610 S.W.2d 935 (Ky. App. 1980)). A decision is arbitrary if it is not supported by substantial evidence, meaning the evidence presented was not "of substance or relevant consequence having the fitness to induce conviction in the minds of reasonable men." Fankhauser v. Cobb, 163 S.W.3d 389, 400-01 (Ky. 2005) (citing to Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998)). A circuit court may affirm or reverse the board's decision, however, it "shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact." Kentucky Revised Statutes ("KRS") 13B.150(2). Likewise, we shall not substitute our judgment for that of the Board as to the weight of the evidence on questions of fact. Carreer v. Cabinet for Health and Family Services, 339 S.W.3d 477 (Ky. App. 2010).
Analysis
I. Lack of Substantial Evidence for Demotion
Claxon first argues that, implicit in the "substantial evidence" standard is "the requirement that the evidence supporting demotion must be based upon facts or circumstances relevant to the position from which the administrator is being demoted." He argues that the superintendant's given reasons for demoting him, i.e., absenteeism, failure to hold required meetings and failure to comply with special education procedures, related exclusively to his conduct as the principal at Wurtland, and in doing so cannot be a basis for a demotion from central office. Also contending that the circuit court misconstrued testimony at the hearing regarding the exact number of absences, Claxon concludes that the Board lacked substantial evidence to support the demotion from his position at the Board's central office, and that the decision was therefore arbitrary and unreasonable. We ultimately disagree with both arguments.
KRS 161.720 defines an "administrator" as "a certified employee, below the rank of superintendent, who devotes the majority of his employed time to service as a principal, assistant principal, supervisor, coordinator, director, assistant director, administrative assistant, finance officer, pupil personnel worker, guidance counselor, school psychologist, or school business administrator." KRS 161.720(8). The statutory procedures for demotion of an administrator apply only to those "who were administrators and already had or now have completed three consecutive years of administrative service in a school system." 77 Op. Att'y Gen. 493 (1977). Strictly speaking, a school administrator has been given no right of tenure to an administrative position and may be removed from such position by the local board of education upon recommendation of the superintendent for any reason not offending some right protected by the state or federal constitutions or KRS 161.162. Hooks v. Smith, 781 S.W.2d 522, 523 (Ky. App. 1989) (citing to KRS 161.765 and Miller v. Board of Educ. of Hardin County, 610 S.W.2d 935 (Ky. App. 1980)).
Claxon, in stating that an administrator may only be demoted for conduct related his or her current position, asks this court to make a distinction among administrators - a distinction which neither statute, nor any other source gives us the authority to make. The authority before us, which consists exclusively of the statutory definition of an "administrator" and the statutory procedures for demoting a person so defined, did not permit the Board or the trial court to make a distinction between Claxon's conduct as a principal and as a central office employee. The paramount fact is that, in both positions, Claxon was an "administrator" under the statutory definition of that term. As such, he was subject to demotion for conduct in the execution of his duties as an administrator. Therefore, pursuant to KRS 161.765, the Board was entitled to demote him for any reason, including that which arose in his capacity as principal, provided that there was substantial evidence to support the stated reason(s).
As both parties have conceded, this case rests upon the "fulcrum" of Claxon's absenteeism. A discrepancy exists, however, regarding the total number of days Claxon missed during the 2009-10 school year and how many days he was absent from each position. However, for reasons stated above, we must focus on Claxon's performance in both positions, during all of the 2009-2010 school year and on his compliance with the provisions of the CAP during that time.
Claxon contends that "most" of the remaining absences between January and June of 2010 occurred during an extended period of excused medical leave beginning April 26, five days after the date of the Board's first letter to Claxon informing him of his demotion. In contrast, the trial court found that Claxon missed thirty-eight and one-half days in addition to the excused medical leave. Though the record does not confirm it, both parties at oral argument conceded this was erroneous on the trial court's part and that Claxon missed thirty-eight and one-half days in total.
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Claxon testified that he missed sixteen days during the fall of 2009 as principal at Wurtland. He did not dispute the total of thirty-eight and one-half days missed between September 2009 and June 2010. While the absence of documentation of Claxon's attendance in the record complicates any determination based solely on his attendance, Claxon's admissions in his testimony help to fill in that gap. Because the CAP makes no distinction between excused and unexcused absences, the sixteen days Claxon admitted missing during the fall of 2009, even if they were excused, clearly exceed the limit of one absence per month expectation set forth in the CAP and, by themselves, would be sufficient grounds for his demotion. However, Claxon also acknowledged his failure as principal to ensure conformity with special education requirements and to hold at least one required meeting - both violations of the CAP and all done while an "administrator" as defined in statute.
Given Claxon's status as an administrator at the time of his demotion, as well as his failures to comply with the CAP, we find that there was substantial evidence for Claxon's demotion. As principal at Wurtland during the fall of 2009, Claxon remained under the requirements of the CAP. Regardless of the reasons, regardless of whether his failures were excused or not, and regardless of his promotion prior to his demotion, Claxon was chronically unable to comply with several requirements of that agreement. Therefore, the evidence on the record, including Claxon's own admission to excessive absenteeism, was substantial.
II. Sufficiency of Notice Under KRS 161.765
We next address whether the superintendant's letter of May 13, 2010, complied with the specificity requirements of KRS 161.765. KRS 161.765(2) provides that an administrator with three or more years of experience as such cannot be summarily demoted. Certain procedures must be followed, including written notice of the demotion from the superintendant to the administrator and the Board. Id. An administrator may contest the demotion within ten days of notice. KRS 161.765(2) further states
[u]pon receipt of the notice of intent to contest the demotion, a written statement of grounds for demotion, signed by the superintendant, shall be served on the administrator . . . The statement shall contain:KRS 161.765(2)(b)(1).
1. A specific and complete statement of grounds upon which the proposed demotion is based, including, where appropriate, dates, times, names, places and circumstances; . . .
It has been held that KRS 165.765 "protects administrators from demotion based on vague, unsubstantiated or generalized allegations of misconduct. The provision exists to allow administrators to know the specific nature of the charges against them, in order to evaluate intelligently the accusations and prepare fully for a hearing on the matter." Estreicher v. Board of Educ. of Kenton County, 950 S.W.2d 839, 842 (Ky. 1997). In Estreicher, the superintendant, in replying to the administrator's notice of intent to contest, sent a letter referencing previous correspondence which laid out specific reasons for a demotion. The letter itself did not provide specific reasons for Estreicher's demotion. In that case, the Supreme Court found Estreicher's argument regarding the sufficiency and specificity of the notice to be meritless because the intent behind the rule - that Estreicher "had the information needed to mount a defense" - had been served. Id. We find the same to be true in Claxon's case.
With the superintendant's letter of May 13, 2010, and other sources, Claxon had the information he needed to mount a defense. The superintendant's letter, which was sent as required under KRS 161.765, provided seven distinct reasons for Claxon's demotion. Claxon was informed that problems of which he was already aware had not been sufficiently remedied and had become cause for his demotion. From this, he was very capable of mounting an informed defense.
It is true that the Superintendant's letter of May 13, 2010, did not state specific dates Claxon was accused of being absent, specific meetings he failed to hold, and the exact manner in which Claxon failed to implement or improve upon other aspects mentioned in the CAP. However, this information was not necessary for Claxon to mount his defense. Claxon was surely aware of the number of absences, excused and unexcused, he had during the 2009-2010 school year and that those absences were of "primary concern" to his employer. Nothing which went unmentioned in the superintendant's letter prevented Claxon from presenting evidence demonstrating his attendance during the school year, the occurrence of meetings, compliance with Special Education deadlines and requirements, or other manners in which Claxon had adhered to the superintendant's wishes. He was able to, and in fact did, mount a substantive defense.
Accordingly, we find, as the Court did in Estreicher, that the notice provided by the superintendant sufficiently specified the grounds for Claxon's demotion and the lack of specific dates, documents, etc. "in no way compromised his defense, and no prejudice resulted." Estreicher, supra, at 843.
Conclusion
This case represents a difficult employment matter; one which significantly affects at least one individual and one which presents facts we suspect might arise again. While it is our opinion that the Board acted according to the law in demoting Claxon, we would advise against the promotion of an employee when concerns persist which are likely to result in his or her demotion. While there may be administrative or policy-based reasons for doing so, such an action only muddies the legal waters and clouds an appellate court's review with confusion, and even suspicion. Hence, such a practice would be wisely avoided by otherwise law-abiding entities.
We hold that there was substantial evidence to support the Board and the Circuit Court's conclusions and that those conclusions were therefore not arbitrary or unreasonable. Furthermore, we find that Claxon was afforded adequate due process and was provided sufficient notice of the grounds for his demotion. Accordingly, the opinion of the Greenup Circuit Court is affirmed.
ALL CONCUR. BRIEFS AND ORAL ARGUMENTS
FOR APPELLANT:
Arthur L. Brooks
Lexington, Kentucky
BRIEF AND ORAL ARGUMENTS
FOR APPELLEES:
James W. Lyon, Jr.
Greenup, Kentucky